Ex Parte Gale et al

Patent Trial and Appeal Board

Oct 7, 2013

12721607 (P.T.A.B. Oct. 7, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/721,607 03/11/2010 Allan Roy Gale 81193170 1464
28395 7590 10/07/2013
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
WILLIAMS, ARUN C
ART UNIT PAPER NUMBER
2859
MAIL DATE DELIVERY MODE
10/07/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte ALLAN ROY GALE, BRUCE CARVELL BLAKEMORE,
PAUL THEODORE MOMCILOVICH, and MICHAEL W. DEGNER
____________________

Appeal 2013-009594
Application 12/721,607
Technology Center 2800
____________________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
CARLA M. KRIVAK, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 6, 7, 10-13, 15, and 16. We have jurisdiction under 35 U.S.C.
§ 6(b).

We note the underlying application in this appeal has been granted a
petition to make special under 37 CFR § 1.102, from a petition filed on
March 17, 2011, and renewed on April 28, 2011. The petition to make the
above-identified application special was requested under the pilot program
for applications pertaining to Green Technologies as set forth in 74 Federal
Register Notice 64666 (December 8, 2009) and amended by 75 Federal
Register Notice 28554 (May 21, 2010) and 75 Federal Register Notice
69049 (November 10, 2010). Therefore, the application will "have special
status in any appeal to the Board of Patent Appeals and Interferences
(BPAI)." (74 Federal Register Notice 64666). We treat Appellants' appeal
with special dispatch.

We affirm.
INVENTION
Appellants' claimed invention is generally directed to determining a
condition of a battery based on impedance parameters of the battery. A
default charge profile for the battery may be altered based on the condition.
The battery may be charged with the altered charge profile. (Spec. 1).

Independent claim 1, reproduced below, is representative of the
subject matter on appeal.

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1. A vehicle comprising:
a battery; and
at least one controller configured to detect parameters
indicative of an impedance associated with and a health of the
battery, to select a set point charge voltage and a charge current
profile for the battery based on the parameters, and to charge
the battery with the set point charge voltage and charge current
profile.

REFERENCES
Sato US 5,193, 067 Mar. 9, 1993
Simmonds US 6,476,585 B1 Nov. 5, 2002
Maleus US Pat. App. Pub. 2006/0132096 A1 June 22, 2006

REJECTIONS
1. Claims 1, 6, 7, 10-13, and 16 stand rejected under 35 U.S.C.
103(a) as being unpatentable over Sato and Maleus.
2. Claim 15 stands rejected under 35 U.S.C. 103(a) as being
unpatentable over Sato, Maleus, and Simmonds.

ANALYSIS
At the outset, we find Appellants have not identified any express
definition or context from the Specification or extrinsic evidence with which
to interpret the "charge profile" for the battery. Therefore, we interpret this
claim term with the broadest reasonable interpretation consistent with the
general disclosure throughout the Specification "1: a representation of
something in outline." (Webster's Seventh New Collegiate Dictionary, p.
680 (1963)). We further note that Appellants' Specification identifies a prior
art profile and generally asserts "other suitable profiles, however, may be
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used." (Spec. 6). Therefore, we find a broad and reasonable interpretation
as discussed above, is appropriate.

35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he Examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore, “‘there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007)(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).
The question of obviousness is "based on underlying factual
determinations including . . . what th[e] prior art teaches explicitly and
inherently . . . ." In re Zurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001).
The Supreme Court guides that where “a patent claims a structure
already known in the prior art that is altered by the mere substitution of one
element for another known in the field, the combination must do more than
yield a predictable result.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416
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(2007). Our reviewing court further guides “it is not necessary that the
inventions of the references be physically combinable to render obvious the
invention under review.” Sneed, 710 F.2d at 1550.
Appellants maintain that:
Maleus does not select a set point charge voltage and a charge
current profile for the battery based on the parameters.
Assuming, arguendo, that Maleus has a set point charge voltage
and a charge current profile, such set point and profile are not
selected based on parameters indicative of an impedance
associated with and a health of the battery.

(App. Br. 2). The Examiner disagrees and maintains the Sato reference
discloses all the limitations of the claimed invention but for the profiles
based on parameters. (Ans. 4). The Examiner further finds the Sato
reference discloses detecting parameters indicative of an impedance
associated with the health of a battery "thereby detecting a battery condition"
(Ans. 4, Sato col. 2, l. 32) and "performs the detection of the battery
condition and/or the control of power generation of a battery-charging
generator." (Sato Abstract).
The Examiner further maintains the claimed invention "does not
define a plurality of set point and profiles, only to select a set point charge
voltage and a charge current profile." (Ans. 4). We agree with the
Examiner that the claimed invention does not set forth a plurality of set
points and profiles, but merely selects “ a set point charge voltage and a
charge current profile." We also agree with the Examiner that the Maleus
reference clearly teaches and fairly suggests the use of a set point charge
voltage and a charge current profile for charging a battery and the Sato
reference discloses and fairly suggests the battery set point values are
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modified depending upon the battery characteristic(s). The Sato reference
discloses:
An accurate concentration-voltage relationship is always
secured by power generation control based on the corrected
concentration Sr'. … If power generation is controlled in such a
manner that the corrected concentration Sr' is always equal to or
larger than SL (if Sr' ≤ SL, the control voltage is increased at step
8), therefore, the battery voltage at the time of driving the
starter is always greater than VL .

(Sato col. 5, ll. 59-66). We agree with the Examiner this change in set points
based upon characteristics is a "selection" as broadly and reasonably
interpreted.
Appellants contend that "vague and conclusory statements such as 'for
advantages such as providing reliable charging' cannot satisfy the examiner's
burden to provide' articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.'" (App. Br.3; see generally
Reply Br. 2).
The Examiner believes "it is understood in the art that one would look
to Maleus to remedy Sato since they both determine and use battery
characteristics to control the charging cycle of a battery and are, therefore,
analogous prior art." (Ans. 3). We agree with the Examiner that the
teachings of the two references are from the same field of endeavor as
Appellants’ claimed invention, regardless of the problem addressed
regarding battery charging and, and are reasonably pertinent to the particular
problem with which the inventor is involved - adjusting the charging of the
battery. Therefore, the skilled artisan would consider the teachings in
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combination generally with respect to the relationship of some characteristic
for adjusting the values and manner of charging the battery.
Appellants rely upon the same arguments advanced with respect to
independent claim 1 in addressing the rejection of independent claim 11.
Therefore, independent claim 11 is grouped with independent claim 1 and
falls for the same reasons. (App. Br. 3).
With respect to independent claim 15, Appellants maintain the
Simmonds reference does not remedy the deficiency in the base
combination. (App. Br. 3). Since we found no deficiency in the Examiner's
rejection of independent claim 1, we find Appellants' argument to be
unpersuasive of error.
CONCLUSION
The Examiner did not err in rejecting claims 1, 6, 7, 10-13, 15 and 16
under 35 U.S.C. § 103.

DECISION
The Examiner’s decision rejecting claims 1, 6, 7, 10-13, 15 and 16
under 35 U.S.C. §103 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R.§ 1.136(a)(1)(iv).

AFFIRMED

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